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Accordingly, the Judge held that the Tribunal was wrong to consider that there was no implied term of the charter in accordance with Regals’ alternative case.
As a result, the Award was set aside and the case remitted to the arbitration Tribunal to determine the other defences of contract variation and estoppel that Oldendorff had raised. The judge noted, however, that – if neither defence succeeded - it would be necessary, unless Oldendorff agreed that no size adjustment was required given that the chartered vessel was almost a 180,000 tonnes vessel, for the Tribunal to determine what reasonable size adjustment, if any, was required to reflect the difference in earning capacity in July 2015 when the benchmark vessel was changed.
'''Comment'''
This judgment, in which a term was held to be implied despite the complexity of the dispute, provides an interesting contrast with the recent judgment in The “Smart”[2021] EWHC 1157 (Comm) [[[[Link title]][[Link title]]]], which held that no term was to be implied into that charter.
As the present case shows, it is only if the contract is, in effect, silent on the precise issue that arises that a term may be implied if it is necessary to make the contract work, if it would otherwise lack practical or commercial coherence.
